Communications Law Commons^™

Masthead Vol.58 No.3 (2006)

Federal Communications Law Journal

No abstract provided.

Editor's Note, Casey M. Holsapple

Federal Communications Law Journal

No abstract provided.

Open Video Systems: Too Much Regulation Too Late?, Micha Botein

Federal Communications Law Journal

No abstract provided.

Responses By The Federal Communications Commission To Worldcom's Accounting Fraud, Warren G. Lavey

Federal Communications Law Journal

WorldCom's disclosure of billions of dollars of financial fraud on June 25, 2002 challenged the Federal Communications Commission ("FCC") in several major ways. The FCC proclaimed its commitment to enforce its rules to protect consumers against service discontinuance as well as the priority of rooting out corporate fraud. The FCC's rules required WorldCom to file accurate financial information and to show that it had financial and character qualifications necessary to hold FCC licenses. Despite numerous related proceedings and other actions in 2001 and early 2002, the FCC had not detected nor deterred WorldCom's fraud. After the disclosure, WorldCom continued its …

'Wi-Fi'ght Them When You Can Join Them? How The Philadelphia Compromise May Have Saved Municipally-Owned Telecommunications Services, Adam Christensen

Federal Communications Law Journal

When the Mayor of Philadelphia announced his plan to provide municipally sponsored Wi-Fi Internet access, Verizon, the incumbent telecommunications service provider organized lobbyists to block the plan. The compromise eventually struck between Pennsylvania municipalities and Verizon, which allows municipalities to offer telecommunications services after giving Verizon a right of first refusal has resulted in a certain degree of uncertainty in the future of municipally sponsored Internet access. This Note examines this compromise and argues that it represents an optimistic future for municipally sponsored telecommunications services. The Note first discusses the history of Wi-Fi technology and the development of the law …

Private Eyes Are Watching You: With The Implementation Of The E-911 Mandate, Who Will Watch Every Move You Make?, Geoffrey D. Smith

Federal Communications Law Journal

The FCC's E-911 mandate, which will ensure that emergency operators automatically receive a caller's location information, should help save lives. However, privacy advocates have expressed concern over the potential for wireless carriers, the government, and third parties to collect and store personal information. Congress has addressed these concerns with legislation, but privacy advocates still worry that consumers are not adequately protected. This Note addresses this concern and argues that in order to ensure consumer protection, additions are needed to section 222 of the Telecommunications Act of 1996. The Note discusses the importance of individual privacy and balances it against the …

Of Rainbows And Rivers: Lessons For Telecommunications Spectrum Policy From Transitions In Property Rights And Commons In Water Law, Dale B. Thompson

Buffalo Law Review

No abstract provided.

Unreal Estate: The Men Who Sold The Moon / By Virgiliu Pop, James A. Yedda

Journal of Space Law

No abstract provided.

Speech Interests Inherent In The Location Of Billboards And Signs: A Method For Unweaving The Tangled Web Of Metromedia) Inc. V. City Of San Diego, Jason R. Burt

BYU Law Review

No abstract provided.

A Trade Dress Approach To The Protection Of Radio Brands, Christopher S. Reed

ExpressO

Over the past ten to fifteen years the radio industry has undergone dramatic changes in terms of both programming and the economic model that underlies the industry’s very existence. Despite the widespread industry consolidation that took place after the passage of the Telecommunications Act of 1996, advances in technological innovation have lead to a diversity of new media options that have changed the way that people consume radio programming and the way advertisers reach their target audiences. Broadcasters have responded by creating niche-oriented formats designed to attract more narrowly defined segments of the listening population. As the programming becomes more …

Opening Bottlenecks: On Behalf Of Mandated Network Neutrality, Bill D. Herman

ExpressO

This paper calls for mandated “network neutrality,” the principle that broadband service providers (BSPs) should generally treat all nondestructive data equally. Without such a mandate, BSPs will likely begin charging content providers for the right to send data at the fastest speeds available. The present frequency with which BSPs block some data entirely will also likely increase.

Neutral networks are preferable for two key reasons. First, they spawn innovation, as illustrated by the explosive online innovation to date. Second, neutral networks better distribute communication power, promoting First Amendment values. Extant and likely future acts of discrimination erode both goals. The …

A Practitioner's View Of Broadcaster Power, Andrew J. Siegel

Federal Communications Law Journal

A Review of J. H. Snider's Speak Softly and Carry a Big Stick: How Local TV Broadcasters Exert Political Power, iUniverse, Inc. 2005. Assistant General Counsel for CBS Andrew J. Siegel reviews this critique of the spectrum award given to television stations as part of The Telecommunications Act of 1996. Using a principal-agent theory, this book examines the complicated relationship between politicians, local television broadcasters, and the U.S. public in an attempt to explain why television broadcasters received the additional spectrum.

Spread Spectrum Is Good-But It Does Not Obsolete Nbc V. U.S.!, Charles Jackson, Raymond Pickholtz, Dale Hatfield

Federal Communications Law Journal

The Authors criticize recent statements by leading legal commentators suggesting that the development of spread spectrum has eliminated radio interference and helped make the underlying legal foundations for regulating spectrum obsolete. The Authors provide a non-technical explanation of how spread spectrum works and why it does not have the effect of eliminating radio interference. The Authors conclude that new technologies are likely to increase the availability of usable spectrum, but they have not wiped out the problem of interference.

Brand X And The Wireline Broadband Report And Order: The Beginning Of The End Of The Distinction Between Title I And Title Ii Services, J. Steven Rich

Federal Communications Law Journal

This Article traces the development of the FCC's distinction between "telecommunications services" subject to common carrier services under Title II of the 1934 Communications Act and "information services" regulated under Title I of the Act from the Computer Inquiry line of cases through the Brand X decision and recent Wireline Broadband Report and Order. The Author pays particular attention to the Brand X decision and the FCC's Wireline Broadband Order and its implications, suggesting that the Order may be subject to reversal when it is challenged in court and proposing how the Commission might react to a reversal. The Author …

Masthead Vol.58 No.2 (2006)

Federal Communications Law Journal

No abstract provided.

Cable Operators' Fifth Amendment Claims Applied To Digital Must-Carry, Nissa Laughner, Justin Brown

Federal Communications Law Journal

This Article addresses the legal and policy implications of property rights in the digital must-carry issue. The Authors review must-carry regulations, present a traditional Fifth Amendment analysis of must-carry, address free speech implications of that property-based analysis, and show how property-based claims might influence future cable regulations and policies. The Authors conclude that while the Fifth Amendment claims are unlikely to succeed legally, they do contain significant rhetorical power that can help shift public policy in ways favorable to the cable industry.

An Economic Approach To The Regulation Of Direct Marketing, Daniel R. Shiman

Federal Communications Law Journal

The growing ubiquity of electronic media and the almost total absence of cost in mass distributions of direct marketing have exacerbated the problem of the increasing intrusion of direct marketing into the privacy of citizens. The Author proposes utilization of a microeconomic social welfare analysis to guide policymakers in determining what forms of direct media should be regulated and what the most effective forms of regulation are likely to be. Sending and receiving costs provide the key factors in determining the extent of the "welfare-reducing marketing" and "marketing aversions," but the Author points to a number of other factors as …

Rethinking Reform Of The Fcc: A Reply To Randolph May, Russ Taylor

Federal Communications Law Journal

This brief Article responds to Randolph May's article, Recent Developments in Administrative Law-The FCC's Tumultuous Year in 2003: An Essay on an Opportunity for Institutional Agency Reform, 56 Admin. L. Rev. 1307 (2004). Taylor disputes May's anecdotal evidence that the FCC's poor handling of the Triennial Review and the media ownership proceedings are symptomatic of a broad agency inefficiency that should be remedied by drastically cutting the size of the FCC and placing it under the exclusive control of the executive branch to ensure electoral accountability. Taylor argues that while these suggestions may have value, such a rush to action …

Rethinking Regulation Of Advertising Aimed At Children, William A. Ramsey

Federal Communications Law Journal

In 1990, Congress passed the Children's Television Act ("CTA"), which directed the FCC to establish standards for broadcasters regarding the amount of children's programming aired and to enforce limits on the amount of commercial time aired during children's programming. The limits are meant to protect children from various harms caused by advertising aimed at children. This Note examines the constitutionality and the effectiveness of these commercial limits. The Note concludes that while the CTA's commercial limits are probably constitutional under the Court's test for regulations of commercial speech, the limits do not provide children with adequate protection from the harms …

On-Line But Out Of Touch: Analyzing International Dispute Resolution Through The Lens Of The Internet, Benjamin J.C. Wolf

Cardozo Journal of International and Comparative Law

The note explores the evolution and challenges of international dispute resolution, particularly arbitration, in the context of the internet's impact on global trade. It highlights how arbitration, while effective, faces new complexities such as jurisdictional disputes and enforcement difficulties due to the internet's borderless nature. The author argues that while arbitration remains a vital method for resolving international disputes, it must adapt to the unique challenges posed by digital transactions to ensure continued effectiveness.

Paradoxical Impact Of Asymmetric Regulation In Taiwan's Telecommunications Industry: Restriction And Rent Seeking, Yuntsai Chou, Kung-Chung Liu

Research Collection Yong Pung How School Of Law

The mobile penetration rate in Taiwan has climbed from 6.86 to 112.15. Mobile phone accounts per 100 capita in the first 6 years of market competition, during this time the state-owned incumbent Chunghua Telecom has been dethroned by a new entrant, Taiwan Cellular Corp. This paper addresses the cause of Taiwan's unprecedented mobile growth, and provides policy solutions for countries that strive to improve their telecommunications sectors in a short time scale. The authors highlight the fundamental role of asymmetric regulation, rather than pure liberalization, in the creation of the deregulated telecommunications industry in Taiwan. The asymmetric regulation in Taiwan …

Dignity - The Enemy From Within, Guy E. Carmi

ExpressO

The manuscript challenges the use of human dignity as an independent free speech justification. The articulation of free speech in human dignity terms carries unwarranted potential consequences that may result in limiting free speech rather than protecting it. This possible outcome makes human dignity inadequate as a free speech justification.

The manuscript also demonstrates why articulations of the rationales behind the “argument from dignity” are either superfluous, since they are aptly covered by the “argument from autonomy,” or simply too broad and speech-restrictive to be considered a free speech justification. As a matter of principle, the nexus between freedom of …

Revenge Of The Bellheads: How The Telecommunications Mindset Will Reshape The Internet, Robert M. Frieden

ExpressO

Recent double digit billion dollar mergers of telecommunications firms consolidate both market share and market leadership by incumbent operators such as Verizon. These companies seek to exploit technological and market convergence by offering a triple play package of wired and wireless telephone service, video and Internet access. As well they need to develop new profit centers to compensate for declining revenues and market shares in traditional services such as wireline telephony.

While incumbent telecommunications operators have pursued new market opportunities, these ventures have not abandoned core management philosophies, operating assumptions and business strategies. Longstanding strategies for recovering investments, using a …

Internalizing European Court Of Human Rights Interpretations: Russia's Courts Of General Jurisdiction And New Directions In Civil Defamation Law, Peter F. Krug

ExpressO

The manuscript examines the steps that Russia's courts of general jurisdiction have taken since 2002 to fashion major changes in Russia's civil defamation law. The critical element in this process has been the courts' internalization of the practice of the European Court of Human Rights in interpreting the freedom of expression provisions in Article 10 of the European Convention on Human Rights, to which Russia acceded in 1998. The internalization movement in the Russian courts began in 2002 in isolated lower court decisions, and culminated in a generally-applicable Decree of the Russian Federation Supreme Court in 2005. The manuscript examines …

Regulation Of Joint Ventures Under Article 81 Of Eu Treaty, Rahul Goel

ExpressO

The paper discusses Article 81 of EU treaty, which focuses on the analysis of the competitive behavior of a joint venture participant in co-operative non-full-function joint venture with focus on telecommunications sector. The Article 81 analyses the joint ventures that fail to satisfy the threshold of the European Commission’s Merger Regulation (ECMR) due to the factors that either they are not fully-functional in nature or lack a community dimension.

Fuck, Christopher M. Fairman

ExpressO

This Article is as simple and provocative as its title suggests: it explores the legal implications of the word fuck. The intersection of the word fuck and the law is examined in four major areas: First Amendment, broadcast regulation, sexual harassment, and education. The legal implications from the use of fuck vary greatly with the context. To fully understand the legal power of fuck, the nonlegal sources of its power are tapped. Drawing upon the research of etymologists, linguists, lexicographers, psychoanalysts, and other social scientists, the visceral reaction to fuck can be explained by cultural taboo. Fuck is a taboo …

Regulatory Status Of Voip In The Post-Brand X World, Jerry Ellig

ExpressO

During the past several years, the Federal Communications Commission has engaged in a series of rulemakings to determine the regulatory status of Voice over Internet Protocol (VoIP). The Supreme Court’s Brand X decision clarifies that even if the FCC’s determination conflicts with that of a court, the FCC’s judgment holds sway as long as the decision is reasonable. We believe that VoIP should be classified as an information service, rather than a telecommunications service, for several reasons. First, the Internet Protocol nature of VoIP technology means that it functions like an information service, rather than a telecommunications service. Second, in …

Against Freedom Of Commercial Expression, Tamara R. Piety

ExpressO

An article that announces itself in the title as “against freedom” has a heavy burden of persuasion to carry. At this time and in this place, it seems almost un-American to be “against freedom,” (however much our civil liberties have in fact been circumscribed in recent years). Nevertheless, the most significant word in the title is not “against” or “freedom,” but “commercial.” Conventional wisdom in the First Amendment area would have it that there is no meaningful basis on which to distinguish between commercial speech and other speech for purposes of the First Amendment. And in recent years the courts …

Dean V. Utica Community Schools: An Arrow Through The Heart Of School Administrative Control Over Student Expression In School Newspapers, Charles B. Upton Ii

Brigham Young University Education and Law Journal

No abstract provided.

Essay For The In-Print Symposium On The Myth Of Moral Justice, Stuart A. Scheingold

Cardozo Public Law, Policy & Ethics Journal

Stuart Scheingold responds to Thane Rosenbaum's The Myth of Moral Justice, agreeing with the aspiration to infuse law with moral imagination but critiquing Rosenbaum's oversight of existing moral energy within the legal profession, particularly through cause lawyering. Scheingold argues that Rosenbaum's approach is overly simplistic, failing to account for institutional obstacles and the contested nature of moral discourse, which can lead to conflict rather than harmony. He emphasizes that while moral advocacy, as seen in cause lawyering, can drive positive change, it also faces significant challenges and backlash.